OpEd News is a fine, progressive news site, but in a recent column, Larry Kachimba waxes defeatist about a Constitutional amendment to overturn Citizens United and denigrates the entire movement in the process. His criticism is based on the idea that Congress already has authority under Article I, Section 4 to regulate elections and pass legislation that invokes Article III, Section 2 to force the Supreme Court to butt out.
The Constitution (Art. I, Sections 4 and 5) already gives Congress the power to regulate and judge elections, provided only that they do not use that power to entrench minority rule contrary to the core democratic axiom of one person, one vote. Prior to 1976 no Supreme Court had encroached on this power of Congress, because the “political question doctrine” had for nearly two centuries precluded them from doing so. In 1976 the Supreme Court established a metaphor that “money is speech” as a way to intrude upon and limit Congress’ power to guarantee the integrity of elections.
Well, there are no qualifications about how Congress uses its Article I, Section 4 powers, like a prohibition on entrenched minority rule (which is apparent in the Senate right now — so much for the axiom). And speaking of broken axioms, the Supreme Court has already usurped the authority to rule on Article I, Section 4 issues and Congress keeps not impeaching them for doing so. Until something changes in this pattern, there’s no stopping the Roberts 5.
The Exceptions Clause (Article III, Sec.2, Cl, 2, Sentence 2) of the Constitution empowers Congress to take away from the Supreme Court any authority to make decrees overturning state and federal laws designed to safeguard the integrity of elections, or otherwise concerning elections. The Exceptions Clause is the means provided by the Constitution to defend from judicial tyranny the democratic authority of Congress, and of the people who elect Congress. This is a general power to make exceptions to the Court’s appellate jurisdiction — which is the basis for all relevant decisions the Court has made to undermine democratic elections, including five decisions since 2006 by the Roberts 5.
Almost right but not quite. This is not a general power to “make exceptions,” it’s just a general power:
Article III, Section 2
In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.
The phrase, “and under such Regulations as the Congress shall make,” is pretty clearly a blanket authority that, coupled with the power to regulate elections in Article I, Section 4, means that McCain-Feingold was exactly the kind of legislation Mr. Kachimba is talking about. Even spelling it out in the text — for instance, “the judiciary shall not infringe on these electoral rules” — would have zero effect on these rulings because the Supreme Court insists that these are not electoral issues, but First Amendment issues. The rulings are being decided based on infringements to the First Amendment, as applicable to legal fictions via the Fourteenth Amendment. There is no version of campaign finance reform legislation Congress can pass that can survive the traps set by the Roberts 5 and the aggressively expansive definitions of persons and speech behind Citizens United.
Mr. Kachimba has other points…
[An amendment] is by nature far too brief to cover all of the detailed provisions that will be necessary to effectively remove money from politics. Detailed and comprehensive legislation addressing all aspects of money in politics would be needed to enforce any such amendment in any case.
This is true and reinforces the point of good amendment language. Citizens United is founded upon generations of successive Supreme Courts that have exploited the language of the Constitution to expand civil rights for legal fictions. The first mechanism is legal personhood, erroneously established in Santa Clara in 1886 and affirmed in Minneapolis Railway in 1889, which is based on an expansive definition of “person” in the Fourteenth Amendment. The second mechanism, established in Buckley in 1977, is the definition of spending money as an expression of protected free speech. Without those two tracks of case law, long established and accepted as legal precedent, there is no Citizens United.
The mistake most solutions contain is an attempt to pile new law on top of existing law, to skirt the new roadblocks created by the Supreme Court and hope it doesn’t give them another opportunity to expand civil rights for legal fictions even more. That’s been the pattern for the past 35 years and it might be time to admit that it doesn’t, and isn’t going to, work. So if adding law is a losing proposition, what about subtracting law? What if we tried to undo what the Supreme Court has done by repealing the case law it has been creating since the late 19th century? Here’s what that could look like.
Point 3 for Mr. Kachimba is about spending scarce political capital wisely. And then he insists that “wisely” is throwing it away on another piece of watered-down legislation that the Roberts 5 will dismantle in one election cycle. And points 4 and 5 are a bit of left wing fear mongering, which is a phrase I rarely need to use.
There is danger in undertaking a strategy that is sold as if it is a solution, but can quickly be seen to be at best a very incomplete solution and at worst no solution at all. Such a campaign diverts energy from working on the practical and effective solution that the country desperately needs; it diverts energy to what on its face appears impossible from an approach that appears barely possible if there were total unity and focus by supporters of democracy.
This is political thinking, not civic thinking. Yes, it’s hard. No, it’s not impossible and saying so is typical left-wing defeatism. The danger is in pretending that ineffectual legislative initiatives that the political classes have used for decades to assuage a restless electorate are worth a damn in a world that includes the Tea Party and Occupy Wall St. Support for full public financing routinely hovers between 50% and 70% (pdf) of the general public, a pretty good number that is meaningless as long as reform can be overturned by the Roberts 5 and the reformers can face retaliation by the donor class.
Ultimately, campaign finance reform is a partisan battle that has very little to do with overturning Citizens United, because the Constitutional principle that spending money is an expression of speech cannot be erased by legislation. And as long as spending money is an expression of speech, the donor class can retaliate against the political class and bend policy to their will, no matter what legislation is on the books. Congress cannot overturn Buckley with legislation. Nor, for that matter, can it overturn Santa Clara.
Irrespective of the availability of time and energy to waste on a misguided idea and still get the necessary law passed, advocacy of the need for a constitutional amendment is dangerous. This is because of its impact on the anticipated future debate over legislation in Congress. The main, perhaps only effective, defense Congress can make to sidestep efforts to force enactment of legislation to get money out of politics would be: Congress is sorry, they would love to help, but they cannot do that because a constitutional amendment is necessary to deal with the Supreme Court.
What anticipated future debate? Mitch McConnell loves the Citizens United ruling. So do all the other corporate stooges in both parties. Just because the “Maverick,” Sen. McCain, is angry that his pet bill was stomped by the Court doesn’t mean there’s anywhere near bipartisan consensus on doing anything about Citizens United on the Hill. That’s why it takes a grass roots movement. The majority of Americans agree that there’s too much money in politics, with equivalent numbers across the political spectrum, but that same poll showed that less than 75% of the country has even heard of the Citizens United ruling. And once you get down to finance reform details, the consensus over solutions breaks down, even among people who tend to agree with each other.
I’d rather wage the inspirational non-partisan battle that sticks with the issues that already have roughly 80% of the people in agreement, even if they don’t know it yet, than waste one more minute on another ineffectual display of partisan wrangling that makes the voters go back to American Idol reruns. All of the reasons Mr. Kachimba gives are tactical, not substantive. This is what his entire argument boils down to:
People continue to talk about a constitutional amendment because it takes about 10 minutes to write one, sounds important, and is easier to fit into a soundbite than the many detailed provisions of a comprehensive law. But we do not have the luxury to pursue strategies that consider winning irrelevant. An easy but counterproductive strategy may be good for PR but it is hurting the effort to get money out of politics, which requires a more thoughtful and complex strategy.
A strategy that must take into account the real damage done to the legal system and the electoral process by the Supreme Court that only multiple reversals by successive court rulings or an Amendment can fix. We can throw all the pitches we want right through the middle of the Congressional strike zone and Roberts and Scalia will just take batting practice until we stop. And just because some people don’t agree with Mr. Kachimba’s view of “effective,” doesn’t mean we’re doing this to sound important. If anything, Mr. Kachimba’s well-practiced cynicism seems particularly tempered to the tenor of the partisan times, whereas people in the amendment movement must seem like Gumby by comparison.
We’re earnest because we know that the American people are more remarkable than “creative thinkers on matters of policy and art” are willing to admit. I’m sure I’m not alone when I say I find attitudes like Mr. Kachimba’s smug and insulting, and ignorant. And I’m tired of aspirants to the “professional left” waxing bitter when the grass roots moves in an unexpected direction. We’re doing this. You want to do something else? Godspeed. And take your uninformed cynicism with you.